Letter to the UN SG Hamas Leaders to International TrialTo: UN Secretary GeneralMr Ban Ki-Moon
United NationsOffice of the Spokesperson for the Secretary-General
United Nations, S-378
New York, NY 10017
Tel. 212-963-7162, Fax. 212-963-7055 Thursday, January 8, 2009 /EMYMThe Honorable Secretary-General, Mr Ban Ki-moon!Subject: Hamas leadership to be brought to trial for War CrimesYour Excellency! We, the Take-A-Pen international public advocacy organization, request decisive action regarding a severe case of war crimes.

In the recent years and in the present ongoing military conflict the Hamas terrorist organization ruling in Gaza has committed a large number of diverse war crimes, as defined by International Law.

The form of warfare the Hamas movement inflicted both on the Gaza population and on Israel has caused much suffering and heavy losses and damage both to Israel’s civilian population and to the entire Gaza Strip. The Hamas regime has fired 6,300 rockets targeting Israeli civilians. In Gaza the Hamas stored rockets and other weaponry and ammunition primarily in residential areas; in houses, mosques, and schools. Thousands of rocket and mortar grenade attacks were launched from within these areas, obliging Israeli military response which inevitably led to great suffering of the population and damage to property.

According to International Law any source of fire on civilian targets is a legitimate target itself. If that source of fire was located among civilians it still remains a legitimate target; and if that vicinity invites fire in return, causing casualties among the local population, these casualties are the full and sole responsibility of the party placing them deliberately in harm’s way. In this case Hamas is fully responsible both for the deliberately targeted Israeli civilian casualties and for the civilian casualties of its own population used by Hamas as a human shield.

Your Excellency, Mister Secretary General! We demand that the Hamas leadership be brought to international justice without delay, and tried for the following war crimes:

– Shooting rockets and grenades purposely on civilian targets in Israel.
– Shooting these rockets from within Palestinian civilian compounds such as schools or in close proximity of hospitals or residential buildings.
– Storing weapons and ammunition in schools, mosques, public offices and buildings and the sort.
– Regularly using their own civilians as human shield; particularly children, often forced to be in the most dangerous spots.
– During fighting with the Israeli forces the Hamas fighters, who wore uniforms at the beginning, changed to civilian clothing or IDF uniforms and continued to fight.
– Hamas fighters have routinely hid among civilians in hospitals
– To the kidnapped Israeli soldier, Gilad Schalit, Hamas did not provide the most elementary rights of war prisoners, such as information given to the other side and Red Cross visits, rights Israel grants even to convicted Hamas terrorists.
– Children and minors were routinely used by Hamas for military tasks, both battle and auxiliary. The Hamas regime has also educated, indoctrinated and trained children and minors to murderous hatred, to will and techniques to kill.
– The Hamas leadership embezzled aid money received for the peaceful needs of Gaza’s population and used these extensive funds for war efforts; weaponry, military equipment and constructions, and an enormous military build-up.

A failure to prosecute the Hamas leadership in International Court would, no doubt, lead to their war crimes growingly become normative behavior, and to more of the same humanitarian catastrophes, to millions of victims of oppression and killings undefended by the UN.

Mr Secretary General, we would appreciate your considered reply, which, with your permission, we would publish, along with this letter. We shall follow your relevant activities with great honor, high expectations, and deep moral support.

Myth: Israel’s attacks against Hamas are illegal since Israel is still occupying Gaza through its control of Gaza’s borders and airspace, and it is therefore bound to protect the civilian population under the Fourth Geneva Convention.

Israel has control over Gaza’s air space and sea coast, and its forces enter the area at will. As the occupying power, Israel has the responsibility under the Fourth Geneva Convention to see to the welfare of the civilian population of the Gaza Strip. (Rashid Khalidi, What You Don’t Know About Gaza , New York Times Op-Ed, Jan. 8, 2009)

Fact: Of the land borders with Gaza, Israel quite naturally controls those that are adjacent to Israel; the border with Egypt at Rafah is controlled by Egypt. Beyond this, it is clear under international law that Israel does not occupy Gaza. As Amb. Dore Gold put it in a detailed report on the question:

The foremost document in defining the existence of an occupation has been the 1949 Fourth Geneva Convention « Relative to the Protection of Civilian Persons in Time of War. » Article 6 of the Fourth Geneva Convention explicitly states that « the Occupying Power shall be bound for the duration of the occupation to the extent that such Power exercises the functions of government in such territory…. » If no Israeli military government is exercising its authority or any of « the functions of government » in the Gaza Strip, then there is no occupation. (Legal Acrobatics: The Palestinian Claim that Gaza is Still « Occupied » Even After Israel Withdraws, Amb. Dore Gold, JCPA, 26 August 2005)

But what if despite this we take seriously Khalidi’s claim that Israel is the occupying power and is therefore legally the sovereign authority in Gaza? In that case the relevant body of law would not be the Geneva Conventions as Khalidi claims, but would rather be the Hague Regulations, which in the relevant article states:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. (Article 43, Laws and Customs of War on Land (Hague IV); October 18, 1907)

Under this article Israel’s incursion into Gaza would therefore be completely legal as a legitimate exercise of Israel’s responsibility for restoring and ensuring public order and safety in Gaza. This would include removing Hamas, which by Khalidi’s logic is an illegitimate authority in Gaza. Under international law Hamas certainly has no right to stockpile weapons or attack Israel, and Israel is therefore justified in taking measures to disarm Hamas and prevent it from terrorizing both the Israeli population and the Gaza population. That is the inescapable logic of Khalidi’s position.

Myth: Since more Palestinians than Israelis have been killed in the fighting this means Israel is acting “disproportionately” or has even committed “war crimes.”

• WAR CRIMES The targeting of civilians, whether by Hamas or by Israel, is potentially a war crime. Every human life is precious. But the numbers speak for themselves: Nearly 700 Palestinians, most of them civilians, have been killed since the conflict broke out at the end of last year. In contrast, there have been around a dozen Israelis killed, many of them soldiers. (Rashid Khalidi, What You Don’t Know About Gaza , New York Times Op-Ed, Jan. 8, 2009)

Beyond this, real world examples obviate any charges about right or wrong based on the number of people killed. Consider that the Japanese attack at Pearl Harbor killed about 3,000 Americans. Does it follow that the US should have ended its counterattacks against Japanese forces once a similar number of Japanese had been killed? Since it did not end its attacks, does that mean the US acted disproportionally and was in the wrong and that the Japanese were the aggrieved party? Clearly the answer is no.

Taking this further, counting the number of dead hardly determines right and wrong. For example, again looking at the Pacific Theatre in World War 2, over 2.7 million Japanese were killed, including 580,000 civilians, as against only 106,000 Americans, the vast majority combatants. Does it then follow that Japan was in the right and America was in the wrong? Again, clearly the answer is no. Just having more dead on your side does not make you right.

Proportionality in the sense used by Rashid Khalidi and Christiane Amanpour is meaningless.

Myth: Israel’s actions are illegal since International Law requires proportionality.

International law … calls for the element of proportionality. When you have conflict between nations or between countries, there is a sense of proportionality. You cannot go and kill and injure 3,000 Palestinians when you have four Israelis killed on the other side. That is immoral, that is illegal. And that is not right. And it should be stopped. (Dr. Riyad Mansour, Palestinian ambassador to the United Nations, CNN, Jan 3, 2009)

Actually, proportionality in the Law of War has nothing to do with the relative number of casualties on the two sides. Rather it refers to the military value of a target (how much of an impact would the target’s destruction have on the outcome of a battle or war) versus the expected threat to the lives or property of civilians. If the target has high military value, then it can be attacked even if it seems there will be some civilian casualties in doing so.

What has to be “proportional” (the term is not actually used in the relevant conventions) is the military value of the target versus the risk to civilians.

5(b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

By this measure, Israel’s efforts to destroy missiles before they can be fired at Israeli civilians, even if that places Palestinian civilians at risk, seems to conform perfectly to the Laws of War. There is no requirement that Israel place the lives of its own citizens in danger to protect the lives of Palestinian civilians.

Myth: Hamas has no choice but to place weapons and fighters in populated areas since the Gaza Strip is so crowded that is all there is.

[Hamas has] no other choice. Gaza is the size of Detroit. And 1.5 million live here where there are no places for them to fire from them but from among the population. (Taghreed El-Khodary, New York Times Gaza reporter, on CNN, Jan. 1, 2009)

In fact there is plenty of open space in Gaza, including the now empty sites where Israeli settlements once stood. The Hamas claim, parroted by the Times reporter, is nonsense.

Beyond this, placing your own civilians around or near a military target to act as “human shields” is prohibited by the Fourth Geneva Convention:

Art. 28. The presence of a protected person may not be used to render certain points or areas immune from military operations.

Article 58 of Protocol 1 Additional to the Geneva Conventions of 1977 goes even further in this regard, requiring that Hamas remove Palestinian civilians from the vicinity of its military facilities, which would include any place where weapons, mortars, bombs and the like are produced, stored, or fired from, and any place where its fighters train, congregate or hide. Here is the text, which calls on the parties to the conflict to:

(A) … endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives;

(b) Avoid locating military objectives within or near densely populated areas;

(c) Take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.

Hamas, as the defacto government in Gaza, has clearly violated all three of these provisions:

They have made no effort to remove civilians from the vicinity of military objectives.

On the contrary, they systematically hide fighters and weapons in schools, in mosques and private homes, and they fire missiles and mortars at Israeli civilians from these places.

Unlike Israel, Hamas has made no effort to provide bomb shelters for the use of Palestinian civilians. While Hamas has imported huge amounts of cement, it has been forcefully diverted from the civilian sector and instead used to build bunkers and tunnels for Hamas leaders, along with hidden missile firing positions.

On the other hand, Israel’s requirement since the early 1990’s that all new homes have a secure reinforced room, and its building of (often rudimentary) bomb shelters in communities near Gaza have helped to shield Israeli civilians from Hamas attacks, though at a cost of over $1 Billion dollars.

It is ironic that Israel is charged with disproportionality for successfully protecting its civilians by following international law.

Myth: Israel violated the ceasefire with Hamas in November, and is thus to blame for the conflict.

• Lifting the blockade, along with a cessation of rocket fire, was one of the key terms of the June cease-fire between Israel and Hamas. This accord led to a reduction in rockets fired from Gaza from hundreds in May and June to a total of less than 20 in the subsequent four months (according to Israeli government figures). The cease-fire broke down when Israeli forces launched major air and ground attacks in early November; six Hamas operatives were reported killed. (Rashid Khalidi, What You Don’t Know About Gaza , New York Times Op-Ed, Jan. 8, 2009)

• Mustafa Barghouti, Palestinian Legislator (video clip): … The reality and the truth is that the side that broke this truce and this ceasefire was Israel. Two months before it ended, Israel started attacking Rafah, started attacking Khan Yunis …

Rick Sanchez: And you know what we did? I’ve checked with some of the folks here at our international desk, and I went to them and asked, What was he talking about, and do we have any information on that? Which they confirmed, two months ago — this is back in November — there was an attack. It was an Israeli raid that took out six people. (CNN, Dec. 31, 2008)

In fact, contrary to Khalidi, Barghouti and CNN’s Rick Sanchez, the Palestinians violated the ceasefire almost from day one. For example, the Associated Press published on June 25, just after the truce started, an article headlined Palestinian rockets threaten truce

The article in its lead paragraphs reported that:

Palestinian militants fired three homemade rockets into southern Israel yesterday, threatening to unravel a cease-fire days after it began, and Israel responded by closing vital border crossings into Gaza.

Despite what it called a « gross violation » of the truce, Israel refrained from military action and said it would send an envoy soon to Egypt to work on the next stage of a broader cease-fire agreement: a prisoner swap that would bring home an Israeli soldier held by Hamas for more than two years.

There were many further such Palestinian violations, including dozens of rockets and mortars fired into Israel during the so-called ceasefire. And there was also sniper fire against Israeli farmers, anti-tank rockets and rifle shots fired at soldiers in Israel, and not one but two attempts to abduct Israeli soldiers and bring them into Gaza. Here are some of the details:

From the start of the ceasefire at 6 AM on June 19 till the incident on November 4th, the following attacks were launched against Israel from Gaza in direct violation of the agreement:

18 mortars were fired at Israel in this period, beginning on the night of June 23.

20 rockets were fired, beginning on June 24, when 3 rockets hit the Israeli town of Sderot.

On July 6 farmers working in the fields of Nahal Oz were attacked by light arms fire from Gaza.

On the night of August 15 Palestinians fired across the border at Israeli soldiers near the Karni crossing.

On October 31 an IDF patrol spotted Palestinians planting an explosive device near the security fence in the area of the Sufa crossing. As the patrol approached the fence the Palestinians fired two anti-tank missiles.

There were two Palestinian attempts to infiltrate from Gaza into Israel apparently to abduct Israelis. Both were major violations of the ceasefire.

The first came to light on Sept. 28, when Israeli personnel arrested Jamal Atallah Sabah Abu Duabe. The 21-year-old Rafah resident had used a tunnel to enter Egypt and from there planned to slip across the border into Israel. Investigation revealed that Abu Duabe was a member of Hamas’s Izz al-Din al-Qassam Brigades, and that he planned to lure Israeli soldiers near the border by pretending to be a drug smuggler, capture them, and then sedate them with sleeping pills in order to abduct them directly into Gaza through a preexisting tunnel. For more details click here and here.

The second abduction plan was aborted on the night of Nov 4, thanks to a warning from Israeli Intelligence. Hamas had dug another tunnel into Israel and was apparently about to execute an abduction plan when IDF soldiers penetrated about 250 meters into Gaza to the entrance of the tunnel, hidden under a house. Inside the house were a number of armed Hamas members, who opened fire. The Israelis fired back and the house exploded – in total 6 or 7 Hamas operatives were killed and several were wounded. Among those killed were Mazen Sa’adeh, a Hamas brigade commander, and Mazen Nazimi Abbas, a commander in the Hamas special forces unit. For more details click here.

It was when Israel aborted this imminent Hamas attack that the group and other Palestinian groups in Gaza escalated their violations of the ceasefire by beginning to once again barrage Israel with rockets and mortars.

Note also that, contrary to Khalidi, Israeli figures do not show that Palestinian violations of the ceasefire during the first four months amounted to “less than 20” rockets.

Considering this long list of Palestinian attacks, charging that Israel broke the ceasefire in November is simply surreal.

Myth: Israel violated the ceasefire by not lifting its blockade of Gaza.

• Negotiation is a much more effective way to deal with rockets and other forms of violence. This might have been able to happen had Israel fulfilled the terms of the June cease-fire and lifted its blockade of the Gaza Strip. (Rashid Khalidi, What You Don’t Know About Gaza , New York Times Op-Ed, Jan. 8, 2009)

• Mustafa Barghouti, Palestinian Legislator: … [Israel] never lifted the blockade on Gaza. Gaza remains without fuel, without electricity, with bread, without medications, without any medical equipment for people who are dying in Gaza — 262 people died, 6 people because of no access to medical care. So Israel broke the ceasefire. (CNN, Dec. 31, 2008)

Contrary to Khalidi and Barghouti, Israel did open the crossings and allowed truckload after truckload of supplies to enter Gaza. Closures until November were short, and in direct response to Palestinian violations, some of which were detailed above.

On June 22, after four days of calm, Israel reopened the Karni and Sufa crossings to enable regular deliveries of consumer goods and fuel to the Gaza Strip. They were closed shortly thereafter, following the first violation of the arrangement, when rockets were fired at Sderot on June 24. However, when calm was restored, the crossings remained open for long periods of time. On August 17 the Kerem Shalom crossing was also opened for the delivery of goods, to a certain degree replacing the Sufa crossing, after repairs had been completed (the Kerem Shalom crossing was closed on April 19 when the IDF prevented a combined mass casualty attack in the region, as a result of which the crossing was almost completely demolished).

Before November 4, large quantities of food, fuel, construction material and other necessities for renewing the Gaza Strip’s economic activity were delivered through the Karni and Sufa crossings. A daily average of 80-90 trucks passed through the crossings, similar to the situation before they were closed following the April 19 attack on the Kerem Shalom crossing. Changes were made in the types of good which could be delivered, permitting the entry of iron, cement and other vital raw materials into the Gaza Strip.

… Israel, before November 4, refrained from initiating action in the Gaza Strip but responded to rocket and mortar shell attacks by closing the crossings for short periods of time (hours to days). After November 4 the crossings were closed for long periods in response to the continued attacks against Israel. (Rearranged from p 11- 12)

Day to day details of the supplies delivered to Gaza and the numbers of trucks involved have been published by the Israeli Foreign Ministry and are available here. The figures confirm that the passages were indeed open and busy.

Myth: Israel is using excessively large bombs in populated neighborhoods and is therefore to blame for any Palestinian civilians killed in the present fighting.

Fact: On the contrary, Israel is using extremely small bombs precisely because Hamas has violated international law by intentionally placing military facilities in densely populated civilian areas (see Article 58 of Protocol 1 Additional to the Geneva Conventions of 1977 cited above). To attack these targets while minimizing civilian casualties, Israel is using the new GBU-39 SDB (Small Diameter Bomb), an extremely precise GPS-guided weapon designed to minimize collateral damage by employing a small warhead containing less than 50 lbs of high explosive. Despite its small size, thanks to its accuracy the GBU-39 is able to destroy targets behind even 3 feet of steel-reinforced concrete.

Many of the Palestinian civilian injuries have therefore likely been caused not by Israeli bombs but by Palestinian rockets and bombs which explode after Israel targets the places where they are stored or manufactured, such as mosques and other civilian structures. Numerous videos have been posted of Israeli bombing runs which clearly show the Israeli bomb causing a relatively small initial explosion followed by much larger secondary explosions. Some of the videos also show Palestinian missiles and other projectiles flying in all directions.

Here are two examples. On the left is video of an Israeli strike on December 27 against a hidden missile launcher. After the initial explosion a Palestinian missile flies out to the side and seems to impact in or near a populated area. The video on the right is of an Israeli strike on January 1st against a mosque in the Jabaliya refugee camp that was being used as a weapons storehouse. Right after the initial Israeli strike caused a small explosion, there were multiple huge secondary explosions as the stored Grad missiles and Qassam rockets detonated, and large amounts of ammunition cooked off:

Israeli strike on Dec. 27, 2008 against a hidden missile launcher; a Palestinian missile then seems to hit near a Palestinian neighborhood.

Israeli strike on Jan. 1, 2009 against mosque in Jabaliya being used as a weapons depot, causing huge secondary explosions.

No doubt Palestinian civilians anywhere near the mosque were killed or injured by the multiple huge blasts and exploding ammunition and rockets. But it is difficult to see how Palestinians injured by Palestinian bombs and missiles can be blamed on Israel.